12-1235
         United States v. Cirineo


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held
 2       at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3       York, on the 3rd day of July, two thousand thirteen.
 4
 5       PRESENT:
 6                   JON O. NEWMAN,
 7                   RALPH K. WINTER,
 8                   CHRISTOPHER F. DRONEY,
 9                               Circuit Judges.
10       _____________________________________
11
12       United States of America,
13
14                                  Appellee,
15
16                         v.                                            12-1235
17
18       Efrain Nicolas Cirineo,
19
20                                  Defendant-Appellant,
21
22       Rafael Cirineo, AKA Nano, et al.,
23
24                         Defendants.
25       _____________________________________
26
27       FOR DEFENDANT-APPELLANT:                          Efrain Nicolas Cirineo, pro se, Lisbon, OH.
28
29
30       FOR APPELLEE:                                     Michael Alexander Levy and Antonia Marie
31                                                         Apps, Assistant United States Attorneys,
32                                                         Southern District of New York, New York,
33                                                         NY.
 1          Appeal from an order of the United States District Court for the Southern District of

 2   New York (Crotty, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the order of the district court is AFFIRMED.

 5          Appellant Efrain Nicolas Cirineo, pro se, appeals from the district court’s order denying

 6   his motion made pursuant to 18 U.S.C. § 3582(c)(2) for reduction of an imposed term of

 7   imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural

 8   history of the case, and the issues on appeal.

 9          We review de novo a district court’s determination as to whether the defendant’s

10   sentence was based on a sentencing range that was subsequently lowered by the Sentencing

11   Commission. See United States v. Williams, 

, 185 (2d Cir. 2009). Section

12   3582(c)(2) provides that a sentencing court may, after considering the factors set forth in 18

13   U.S.C. § 3553(a) and the applicable policy statements issued by the Sentencing Commission,

14   reduce a defendant’s term of imprisonment if his sentence was based on a sentencing range

15   subsequently lowered by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). Where the

16   Guidelines range applicable to a defendant has subsequently been lowered as a result of an

17   amendment listed in subsection (c) of U.S.S.G. § 1B1.10, a reduction is authorized under

18   § 3582(c)(2). U.S.S.G. § 1B1.10. Section 1B1.10(a)(2)(B) further provides, however, that a

19   reduction in the defendant’s term of imprisonment is not authorized under § 3582(c)(2) when “an

20   amendment listed in [§ 1B1.10(c)] does not have the effect of lowering the defendant’s

21   applicable guideline range.” Thus, a sentence reduction under § 3582(c)(2) would not be

22   authorized where “[a retroactive amendment] is applicable to the defendant but the amendment


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 1   does not have the effect of lowering the defendant’s applicable guideline range because of the

 2   operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term

 3   of imprisonment).” Id. at Application Note 1(A).

 4          Cirineo’s sentence was not based on a Guidelines range that was subsequently lowered as

 5   a result of an amendment to the Guidelines. In relevant part, the June 2011 Amendment 750

 6   adjusted the minimum quantity of cocaine base required for a base offense level of 38, pursuant

 7   to U.S.S.G. § 2D1.1, from 4.5 kilograms to 8.4 kilograms. See U.S.S.G. § 2D1.1 (Nov. 1, 2009)

 8   and (Nov. 1, 2011). However, because the original sentencing court found that Cirineo was

 9   responsible for distributing 19 kilograms of cocaine base, well in excess of the minimum

10   threshold under the amended Guidelines of 8.4 kilograms, the calculation of his base offense

11   level of 38 was not changed by the Guidelines amendment and he is ineligible for a sentence

12   reduction.

13          Finally, the district court did not abuse its discretion by choosing not to hold a hearing,

14   where the sentencing court found Cirineo to be responsible for distributing a quantity of cocaine

15   base well above the 8.4 kilogram threshold. Federal Rule of Criminal Procedure 43(b)(4)

16   provides that a defendant is not required to be present at a proceeding “involv[ing] the correction

17   or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).” Furthermore, U.S.S.G.

18   § 1B1.10 makes clear that “proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement

19   do not constitute a full resentencing of the defendant,” U.S.S.G. § 1B1.10(a)(3), and thus a

20   district court’s decision on the motion need not constitute a resentencing procedure. Section

21   6A1.3 of the Guidelines does allow hearings “[w]hen any factor important to the sentencing

22   determination is reasonably in dispute.” U.S.S.G. § 6A1.3; see also United States v. Woods, 581


                                                      3


, 539 (7th Cir. 2009). However, in this case, the district court did not abuse its

2   discretion by choosing not to hold a hearing where the sentencing court’s finding that Cirineo

3   was responsible for distributing a quantity of cocaine base well above the 8.4 kilogram threshold

4   was not reasonably in dispute.

5          We have considered all of Cirineo’s remaining arguments and find them to be without

6   merit. Accordingly, for the reasons stated above, we AFFIRM the order of the district court.

7                                                 FOR THE COURT:
8                                                 Catherine O’Hagan Wolfe, Clerk
9




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